The Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) Regulations 2020

Modification: insertion of Part 1A

3.  The Conduct Regulations apply as if after regulation 4, there were inserted—

“PART 1A Condition C special determination

Condition C special determination: matters to be taken into account

5A.— (1) This Part applies where the officer concerned is a Condition C person.

(2) The relevant authority must, as soon as practicable following receipt of a written report made under regulation 20 (report of investigation) or an equivalent report made under external procedures established for England and Wales or Northern Ireland—

(a) determine whether the officer concerned has a case to answer in respect of gross misconduct or no case to answer, and

(b) send to the Director General a copy of the report and a written record of its determination under sub-paragraph (a).

(3) The Director General must make a Condition C special determination after receiving—

(a) a copy of the written report or equivalent report (as the case may be) referred to in paragraph (2), and

(b) the written record referred to in paragraph (2)(b).

(4) A “Condition C special determination” is a determination by the Director General as to whether the taking of disciplinary proceedings against the officer concerned in respect of alleged gross misconduct would be reasonable and proportionate having regard to—

(a) the seriousness of the alleged gross misconduct,

(b) the impact of the allegation on public confidence in the MDP, and

(c) the public interest.

(5) When assessing the seriousness of the alleged gross misconduct for the purposes of paragraph (4)(a), the matters which the Director General must take into account are—

(a) whether it appears that the alleged gross misconduct amounts to a criminal offence,

(b) whether it appears that a complainant or other person has been harmed (whether physically or psychologically) by the alleged gross misconduct and, if so, the extent and seriousness of the harm,

(c) where it appears that a complainant or other person has been so harmed, whether that person was a vulnerable person,

(d) whether it appears that the alleged gross misconduct was intentional,

(e) whether it appears that the purpose or one of the purposes of the alleged gross misconduct was personal gain or benefit for the officer concerned,

(f) whether it appears that the alleged gross misconduct is aggravated by discriminatory behaviour on the grounds of a person’s race, gender, disability, age, religion or belief, sexual orientation or gender identity,

(g) whether it appears that the officer concerned acted with one or more other persons serving with the MDP,

(h) the extent to which the alleged gross misconduct involved abuse of a position of trust or authority held by the officer concerned,

(i) whether it appears that the officer concerned has taken steps to prevent the alleged gross misconduct being identified or to obstruct investigations into it, other than lawful steps in the officer’s defence,

(j) whether it appears that the alleged gross misconduct has had an adverse effect on community relations,

(k) whether it appears that there are mitigating circumstances arising out of the health (whether physical or mental) of the officer concerned at the time of the alleged gross misconduct, and

(l) any other matters that the Director General considers relevant.

(6) When assessing the impact of the allegation on public confidence in the MDP for the purposes of paragraph (4)(b), the matters which the Director General must take into account are—

(a) whether it appears that the alleged gross misconduct has had an effect on relations between the public and the MDP,

(b) the extent of any apparent harm to public confidence in the MDP,

(c) the effect that a decision not to take disciplinary proceedings might have on public confidence in the MDP, and

(d) any other matters that the Director General considers relevant.

(7) When assessing the public interest for the purposes of paragraph (4)(c), the matters which the Director General must take into account are—

(a) whether it appears that the officer concerned should be prevented from future employment or appointment as a constable,

(b) where it appears that the officer concerned should be so prevented, whether disciplinary proceedings are necessary for this purpose,

(c) the length of time since the alleged gross misconduct occurred,

(d) whether it appears that the officer concerned will be held to account in respect of the alleged gross misconduct through other means, such as criminal or other proceedings,

(e) where it appears that a complainant or other person has been harmed (whether physically or psychologically) by the alleged gross misconduct, whether it appears that a decision not to take disciplinary proceedings would adversely affect that person,

(f) whether it appears that the officer concerned is unfit to be subject to or to participate in disciplinary proceedings by reason of disability or ill-health, and

(g) any other matters that the Director General considers relevant.

(8) In paragraph (5)(c), “vulnerable person” means a person who, by reason of age, disability or ill-health, is, or may be, unable to—

(a) take care of themselves, or

(b) protect themselves against harm or exploitation.

Condition C special determination: procedure

5B.— (1) Before making a Condition C special determination the Director General—

(a) must give a notification in writing to—

(i) any complainant,

(ii) any interested person, and

(iii) the officer concerned,

(b) must consult—

(i) the Ombudsman, where the case has been investigated by the Ombudsman,

(ii) the Commissioner, where the case has been investigated by the Commissioner,

(c) may consult any other person the Director General thinks appropriate.

(2) A notification under paragraph (1)(a) must—

(a) state that the Director General is to make a Condition C special determination and the consequences of such a determination;

(b) explain the effect of regulation 5A;

(c) explain that if disciplinary proceedings are taken and the allegation of gross misconduct is proved, the officer concerned may be subject to a finding that the officer would have been dismissed if the officer had not ceased to be a member of the MDP;

(d) subject to the harm test, set out any findings relating to the conduct to which the investigation relates in any investigation report sent to the Director General under regulation 5A(2);

(e) set out the person’s rights under paragraph (3);

(f) in the case of the officer concerned, state that the officer has the right to seek advice from the officer’s staff association or any other body and the effect of regulation 6(1) and (2) (police friend), and 7(1) (legal representation).

(3) A person given a notification under paragraph (1)(a) may, within the period of 21 days beginning with the day on which the notice is given or such longer period as the Director General may agree with that person, provide a written statement and any document which the person wishes the Director General to take into account for the purposes of the Condition C special determination.

(4) When making a Condition C special determination the Director General must take into account in addition to the matters specified in regulation 5A—

(a) any response to a consultation carried out under paragraph (1)(c),

(b) any written statement or document provided under paragraph (3),

(c) any findings relating to the conduct to which the investigation relates in any investigation report sent to the Director General under regulation 5A(2), and

(d) any other relevant evidence.

(5) The Director General must give notification in writing of a Condition C special determination and the consequences the determination to—

(a) the persons mentioned in paragraph (1),

(b) the Ombudsman, where the Ombudsman has been consulted under paragraph (1)(b)(i),

(c) the Commissioner, where the Commissioner has been consulted under paragraph (1)(b)(ii), and

(d) the investigator appointed under external procedures established for England and Wales, Northern Ireland or Scotland.”.